Thursday, June 27, 2013

Corruption, Shuanggui and Rule of Law

The psychological examination room of a shuanggui facility.

In the course of China’s recent transition of power from Hu Jintao to Xi Jinping, there has been much talk about the need to curb corruption and restore popular trust in the government. “Power should be reined by the cage of regulations,” Xi announced in a speech earlier this year, adding that “party cadres at various levels should keep in mind that no one can enjoy absolute power outside of the law.” Although the fall of several high-profile officials has illustrated the new administration’s anti-corruption resolve, the arrest of citizens who call on authorities to make good on their pledges about transparency and rule of law has sent troublingly mixed signals.

Both the anti-corruption effort and the notion of enhancing rule-based governance converge in a recent article (translated below) in the Guangzhou magazine South Reviews by legal journalist Ye Zhusheng. Ye looks at the practice of shuanggui—a form of investigative custody used against Communist Party members accused of serious disciplinary violations such as corruption or dereliction of duty—and how the recent passage of regulations within the party might be a sign of efforts to bring this controversial corruption-fighting measure under rule of law.

Of course, one way to “integrate” shuanggui with Chinese law is to adapt the law so that it better accommodates some of shuanggui’s features. Many argued that the 2012 Criminal Procedure Law’s provisions concerning “residential surveillance”—permitting detention of suspects in state-security, terrorism, or corruption cases in “designated locations” for up to six months—were a way of enabling the law to encompass investigative practices that have heretofore existed outside of the law. This would facilitate an eventual convergence in which extralegal measures would no longer be necessary, but it also entails expanding the scope of shuanggui practices to new targets under the aegis of law.

This particular understanding of rule of law, one that treats “law” as the main criterion of what is right and just, fails to address what, if any, higher-order principles guide the formation of rules in a society. As the commentators in the article below suggest, the preservation of shuanggui and the practices associated with it ultimately appears to be premised on consequentialist, utilitarian arguments—shuanggui is the most powerful means of extracting information about corruption. Is the merging of extralegal measures like shuanggui and legal measures like residential surveillance aimed at protecting the rights of officials accused of wrongdoing—people for whom the public has very little sympathy—or is it, rather, aimed at producing a more rational and efficient system of investigation that can eliminate some of the more egregious errors of the current system? The answer to that question is key to understanding what shuanggui’s future portends for rule of law development in China.

*
Shuanggui: Between Discipline and the Law
Ye Zhusheng, South Reviews
June 10, 2013

On May 27, the Communist Party of China (CPC) Regulations for Drafting Internal Party Regulations and CPC Provisions for Placing Internal Party Regulations and Normative Documents on File were promulgated, forming the first formal, open “legislation laws” inside the party. The institutional provisions associated with shuanggui are mainly expressed in the form of internal party regulations, so the appearance of these two sets of regulations may be an overture to bringing shuanggui under rule of law.

The Complex Face of Shuanggui

Many years from now, for [those] looking back at China’s anti-corruption history, shuanggui will definitely be a keyword. There are mainly two occasions when this word comes into public view. The first is when relevant authorities announce that some official is “suspected of a serious breach of discipline and undergoing investigation by the [party] organization.” This usually means the end of an official’s political career and the beginning of imprisonment. This situation is often greeted by the public with “great cries of rejoicing.” The second is whenever an official under shuanggui dies for whatever reason and the official’s relatives, scholars, and lawyers raise all sorts of questions, but the public’s attitude ranges somewhere between “he got what he deserved” to “complete disregard.”

Recently, shuanggui has again entered the public view in these two diametrically opposite ways, first through the Liu Tienan case and then through the Yu Qiyi case. Late last year, journalist Luo Changping made corruption accusations on Weibo naming Liu Tienan, the former deputy director of the National Development and Reform Commission and director of the National Energy Administration. After waiting for nearly half a year and after all sorts of public conjecture, news of shuanggui was formally announced. Soon thereafter, the public “cheered” the fact that the “tiger-killing” anti-corruption momentum had not slackened, and the media began taking a careful inventory of the “course” of Luo Changping’s legendary [act of] naming names on Weibo.

In April of this year, Yu Qiyi, chief engineer at Wenzhou Industry Investment Group Ltd, died suddenly while under shuanggui. One explanation was that he died because he “fell while showering.” Another was that he “drowned.” Relatives discovered “widespread injuries” all over his body. Afterwards, the local party committee formed a special task force to investigate the incident further.

The institutional definition of shuanggui [or dual stipulateds] comes from the Administrative Supervision Regulations, issued by the State Council in 1990, which state that inspection authorities investigating a case have the power to “order relevant individuals to provide explanations and justifications on matters related to the matter under investigation at a stipulated time and stipulated place.” In formal documents, shuanggui is also known as lianggui [or two stipulateds]. In 1997, the Administrative Supervision Law was passed, changing the “stipulated” of the original regulations to “appointed,” leading to the phrase liangzhi [or two appointeds]. In 1993, the Central Commission on Discipline Inspection (CCDI) and the Ministry of Supervision came to operate under one roof, so that in practice it is generally difficult to distinguish between shuanggui and liangzhi.

In a series of major anti-corruption cases, shuanggui has been clearly effective: The cases of Chen Xitong, Hu Changqing, Cheng Kejie, and Chen Liangyu were all easily resolved using the “anti-corruption weapon” of shuanggui.

According to Li Yongzhong, an expert on the anti-corruption efforts of the CCDI, shuanggui is necessary in the current battle against corruption. It is a “unique” anti-corruption tactic created to accommodate China’s serious corruption problem: “There are no methods more powerful than lianggui.” Li Yongzhong once spent eight years heading a local discipline inspection office and used shuanggui in about 10 to 20 percent of cases, all of which were “solved.”

On the one hand, it’s an “anti-corruption weapon.” On the other hand, it’s a “deadly black hole.” Since the 1990s, shuanggui began showing its complex face to the public from behind its mysterious veil.

Forging of an “Anti-Corruption Weapon”

So, how does shuanggui—distinct from the legal process—achieve such legendary success in the anti-corruption effort? First of all, this is related to the secret case-handling locations used under shuanggui.

In 1998, the CCDI and Ministry of Supervision issued the Notice on Several Questions Regarding the Use of Liangzhi and Shuanggui Measures by Discipline Inspection and Supervision Organs, which stipulated that shuanggui facilities could neither be set up in offices of judicial organs, places of detention, or facilities for custody and repatriation [a form of extrajudicial detention abolished in 2003 following the death of Chinese citizen Sun Zhigang] set up by administrative authorities, nor could dedicated liangzhi or shuanggui facilities be built. In 2001, the CCDI again issued a document requiring that shuanggui locations “must be selected so as to ensure safety and should generally be selected from one-story houses or the first floor of multi-story buildings meeting adequate security and prevention criteria.”

Sources say that hotels, guesthouses, military bases, and even ordinary residences may be used as locations for shuanggui. South Reviews (SR) interviewed several criminal attorneys who have represented officials in corruption cases, the majority of whom were held under shuanggui in special rooms in hotels or guesthouses.

Central Party School Professor Lin Zhe has visited a local discipline inspection committee’s shuanggui facility. According to her, the set-up of this shuanggui location resembled a standard hotel room, except that all sharp corners in the room were covered with rubber in order to prevent accidents. People’s Daily Online previously published a set of photographs taken by someone who had visited a “base of operations” set up by the CCDI deep in the mountains, which revealed that the high-security location included an interrogation room, a room for psychological testing, and a room for coordinating investigations.

A second characteristic of shuanggui is that the discipline inspection team has relative independence compared to judicial organs. This is primarily because most team members are temporarily drawn from different units and mostly are not previously familiar with one another. This works to eliminate the interference that can come from things like personal relationships.

According to the CCDI’s Notice on Further Standardizing the Use of Lianggui Measures: “Attendants shall be selected from employees of party and state organs, and, as necessary, state organs can be requested to appoint them. Attendants must receive rigorous training, clearly understand their responsibilities, and be strictly disciplined.” According to previous media reports, “every time a person is placed under shuanggui, at least six to nine people attend to him in three shifts around the clock, and those on the night shift cannot sleep.”

A discipline inspection committee employee who did not want his name revealed told SR that if the regulations were strictly adhered to, the time limit for shuanggui could not exceed the time limit for investigating the case, extraction of confessions through torture would not be allowed, and a degree of openness would be required, such as the provision for “notice after 24 hours.” In that case, the shuanggui methods would not be that different from those used by the procuratorate under legal provisions and thus the results would basically be the same. But why hasn’t shuanggui been discarded? This source’s view is that, first, shuanggui enjoys much greater secrecy than judicial process, so that even when “extraordinary” measures are employed, it’s difficult to discover [them] or pursue responsibility. Even more importantly, “If the procuratorate handles the case, there are certain things for which the degree [to which they are used] is more difficult to control.”

Li Yongzhong summarized for SR the reasons why shuanggui is such a great deterrent. Based on his own experience handling cases and the results of his research, he has concluded that there is one major principle and three major laws of shuanggui. The principle is that corrupt people become associated with each other out of economic interests, but “they have no lasting friends, only lasting interests.” As for the three major laws, the first is the “toilet law”: once an official leaves his position of power, it’s like standing up after using the toilet—the stench immediately begins to spread, and the signs of criminality then become apparent. The second is the “law of when the tree falls, the apes scatter”: once an official under shuanggui is isolated from other persons associated with the case, the “apes” start to panic and it’s easy to divide and conquer. The third is the “law of asymmetric information”: after being put under shuanggui, an official loses contact with the outside world and the conspiracy of silence surrounding his corruption begins to fall apart on its own.

The deterrent effect of shuanggui is enough to make officials blanch as soon as they hear the word. This has even been used to extort officials. In March 2009, the head of a government bureau in a district of Chongqing was taken for “questioning” in a hotel room by three unemployed vagrants who disguised themselves as “discipline inspection personnel” carrying out shuanggui. During this “fake shuanggui” period, the official gave a full account of his crimes and even handed over the bank card he was carrying and gave up his password. Similarly, in May 2010, the head of a government bureau in Quanjiao County, Anhui, was also taken away for investigation by people masquerading as “discipline inspection personnel” before being successfully rescued by police more than 40 hours later. According to media reports, that bureau head “displayed obedience” as he was being led away.

These two major tactical advantages of shuanggui, the secrecy of locations and the independence of the investigation team, combined with the ease with which the discipline inspection work team can handle “certain things,” is the basis upon which Li Yongzhong’s three major laws can have their impact. These characteristics enable shuanggui to become an “anti-corruption weapon,” but the problems buried underneath cannot be overlooked.

Integration under Rule of Law

Cheng Wenhao, director of the Anti-Corruption Research Center at Tsinghua University [School of Public Policy and Management], participated in an anti-corruption forum last November chaired by CCDI Secretary Wang Qishan. Cheng believes that as far as the real needs of the battle against corruption are concerned, there is a certain necessity for shuanggui. However, the majority of scholars also believe that shuanggui should be integrated under rule of law and, once the legal system matures, this transitional measure should be abandoned. Although Li Yonghao has praise for the effectiveness of shuanggui, he also believes that institutionally speaking shuanggui is “not without its conflicts with the law” and ought to be used carefully and rarely until the conditions are right for it not to be used at all.

Currently, the institutional nature of shuanggui has gradually become more certain and rule-of-law elements have increased. For example, in the CCDI’s 2001 Notice on Further Standardizing the Use of Lianggui Measures, it states that serious consequences caused by dereliction or abuse of duty or instances of forced or induced confession or corporal punishment during lianggui or any unauthorized use of lianggui shall result in serious pursuit of responsibility for those directly responsible. Moreover, the CCDI’s 2005 “Document 7” makes clear that the rights of a shuanggui target under investigation should be safeguarded, including the right to defend oneself, right of appeal, right of personhood, right to know, and right to property. In practice, however, just as in the Yu Qiyi case, there are still many circumstances in which shuanggui has not yet been integrated under rule of law.

In March 2005, the discipline inspection committee of the Hebei Province State-Owned Assets Supervision and Administration Commission (SOASAC ) placed former party secretary and chairman of the Hebei International Trust and Investment Company Liang Yuncai and others under shuanggui. During the shuanggui period, three investigators selected by the discipline inspection committee from companies under the aegis of the Hebei SOASAC beat Liang Yuncai on multiple occasions, resulting in his death. The interesting thing is that the of the three people selected, one was a police officer for the security section of a state-owned enterprise, while the other two were an officer in the armed services department with no investigative experience or qualifications and a “part-time” driver.

Media reports on the Liang Yuncai case cited the Indictment Opinion Report in the case: “Attendants” beat Liang Yuncai multiple times “for not sitting up straight, failing to follow instructions” and “having a poor attitude and failing to honestly confess.” During [the beatings], “Zuo Shuping (the aforementioned police officer) used a mop handle to beat Liang Yuncai’s back, causing the handle to break, and used a stool to strike Liang’s back and upper torso, causing Liang’s ribs to break in several places and widespread subcutaneous tissue and muscle to bleed in the upper torso, shoulders, and legs, leading to substantial soft tissue damage and bleeding leading to hemorrhagic and traumatic shock.”

After the incident, the three men were respectively handed sentences of life imprisonment, 15 years’ imprisonment, and 10 years’ imprisonment for the crime of intentional injury. Moreover, two other discipline inspection personnel who participated in the investigation were sentenced to seven years’ imprisonment and three years’ imprisonment, suspended for five years, respectively, for dereliction of duty because they had “clear knowledge that the attendants carried out beatings and yet did nothing to stop them.”

The verdict in the Liang Yuncai case shows that shuanggui is not a law-enforcement procedure, otherwise the crime ought to have been “coercing confession through torture.” Xu Songlin, a professor of criminal law, told SR that the crime of intentional injury applies to ordinary actors and does not require them to be employees of state organs, whereas dereliction of duty applies to employees of state organs and is a crime of negligence with a maximum prison term of seven years. In contrast, when coercion of confession through torture leads to bodily injury or death and heavy punishment is imposed for intentional injury or intentional homicide, the maximum penalty is death, but [the offense of coercing confession through torture] is only applicable to law-enforcement personnel. Even though the Liang Yuncai case involved a police officer, he ultimately was treated as an ordinary actor in the sentencing for the crime of intentional injury.

Just two weeks after the death of Yu Qiyi, news emerged that Jia Jiuxiang, the vice president of the Sanmenxia Intermediate People’s Court in Henan Province, had died while under shuanggui. Officially, his death was attributed to a “heart attack,” but relatives countered that Jia had no heart problems. There have been frequent reports of similar incidents involving death under shuanggui in recent years, most of which are ruled accidental. After many inquiries, SR has discovered extremely few cases like that of Liang Yuncai in which shuanggui investigators were ultimately held accountable.

In 1997, Wang Jinying, a judge at Tianjin’s Baodi County People’s Court, was accused of the crime of self-seeking misconduct and investigated first by the discipline inspection committee and then by the procuratorate. Because of a lack of evidence, Wang was released. After his release, Wang applied for state compensation. In its decision, the Tianjin No.1 Intermediate People’s Court wrote that the discipline inspection committee “is a party organization, not a state organ, and China’s State Compensation Law requires that the body violating rights must be a state organ.” Therefore, the time spent under investigation by the discipline inspection committee could not be included in the calculation of state compensation.

Liu Jianlong, law lecturer at the China Youth University for Political Sciences, points out that even though state compensation cannot be applied in cases of shuanggui, there are provisions in the Administrative Procedure Law for holding state organs accountable for “inaction” and, in principle, one could pursue claims of responsibility against state supervision organs.

In a speech early this year, CCDI Secretary Wang Qishan said: “The current anti-corruption [effort] must primarily treat the symptoms in order to buy more time to treat the causes.” In Li Yongzhong’s view, the use of shuanggui at the tactical level is necessary to treat the symptoms in the “battle to annihilate” corruption, but looking long-term, treating the causes can only rely on a “systematic anti-corruption” [effort] not a “power-based anti-corruption” [effort].

On May 27, CPC Regulations for Drafting of Internal Party Regulations and CPC Provisions for Placing Internal Party Regulations and Normative Documents on File were promulgated, forming the first formal, open “legislation law” inside the party. According to these two sets of regulations, regulations issued by party organs including the discipline inspection organs must go through a process of prior review, during which one of the review standards is [to ask] “is it in accord with the constitution and the law.” The institutional provisions associated with shuanggui are mainly expressed in the form of internal party regulations, so the appearance of these two sets of regulations may be an overture to bringing shuanggui under rule of law.